THIS JUST IN!

The American Civil Liberties Union of Vermont has obtained internal Department of Motor Vehicles records describing a DMV facial recognition program that is banned by Vermont state law and compromises the privacy and security of thousands of Vermonters. In a letter delivered yesterday to DMV Commissioner Robert Ide, the ACLU demands an immediate end to the program, which was first implemented in 2012.

Vermont DMV records provided to the ACLU show the agency using facial recognition software (FRS) to search and share with other state and federal government agencies the photographs and personal information of Vermont ID holders. That violates a 2004 state law barring the use of technologies that “involve the use of biometric identifiers.”

ACLU of Vermont staff attorney Jay Diaz: “DMV’s program is patently illegal—there is nothing in the legislative history or administrative record we reviewed to indicate that this program should be exempt from the statute’s requirements. To the contrary, the extensive problems uncovered by the ACLU show exactly why the Legislature was right to adopt this law to protect Vermonters’ privacy from government surveillance.”

Under the DMV’s facial recognition program, state and federal government agencies are invited to submit photographs and video images to Vermont DMV for analysis. DMV uses facial recognition technology to conduct a search, drawing on the 2.6 million images in DMV’s photo database. DMV then hands over Vermonters’ photo images and “any associated information stored with the photo[s]” to the requesting entity.

Since 2012, DMV has run at least 126 FRS searches at the request of a variety of local, state, and federal government agencies, and secretly shared the photos and “associated information” of potentially thousands of Vermonters with those agencies. DMV has responded to search requests from the FBI, ICE, the U.S. State Department, and state and local police departments from around the country.

James Lyall, executive director of the ACLU of Vermont: “Once again, we see Vermont DMV overstepping its authority and thumbing its nose at state law. In addition to violating Vermont law, DMV’s facial recognition program invades Vermonters’ privacy, disproportionately targets people of color, places immigrants at increased risk of harm, and lacks due process protections to prevent further abuse. This program was banned for a reason, and must be halted immediately. The ACLU is calling on legislators to hold DMV accountable and take action to protect Vermonters from runaway government surveillance and discrimination.”

In its letter to Commissioner Ide, the ACLU highlights the program’s disproportionate impact on people of color. DMV’s records indicate that since 2012, searches for African-Americans occurred seven times more frequently, and searches for Hispanics were nearly twelves times more frequent, relative to those groups’ respective share of Vermont’s driving population.

Though originally justified as necessary for preventing identity theft and fraud, from its inception the FRS program has been made available to law enforcement agencies around the country for uses unrelated to theft or fraud detection. According to DMV records, the agency has conducted searches involving people merely alleged to be involved in “suspicious circumstances.” Other requests have been submitted on the basis of minor offenses such as trespassing or disorderly conduct, while others fail to reference any criminal conduct.

DMV records describe the FBI sending one man’s image to DMV for facial recognition scanning after the man allegedly asked “unusual and suspicious” questions at a local gun shop. DMV records show the FBI listed the charges as “N/A.” Nonetheless, DMV responded by sharing Vermont ID photos and associated information with the FBI. In another case, DMV scanned and sent Vermont ID holders’ photos and information to U.S. Marshals, ostensibly to locate the girlfriend of an alleged fugitive based upon a photo of the girlfriend. The program has also been used to search for immigrants alleged to have overstayed their visas, another troubling example of DMV’s continuing entanglement in federal immigration operations.

Commissioner Ide has provided assurances that outside agencies would only receive Vermonters’ biometric information if they met “stringent criteria,” but in practice that has not been the case. Of the more than 100 times government agencies have sought a FRS search, the DMV has never declined a request. DMV’s records show most requests do not include a warrant or other indicator of probable cause or valid investigation. DMV does not take steps to ensure the information provided is protected from further distribution, and provides no notice to the individuals targeted.

Jay Diaz: “DMV forces Vermonters to give up the equivalent of a fingerprint in exchange for the ability to drive, then allows their personal information to be disseminated without any meaningful oversight or limitations in place. Since 2012, DMV has approved every single request by outside agencies to hand over Vermonters’ photographs and personal information. The DMV’s ‘ask and you shall receive’ policy is unlawful, and it fails to protect against misuse and abuse.”

DMV records indicate that the FRS program regularly sweeps up innocent people. When DMV receives a request from an outside agency and scans its database for matches, it provides ID photos of up to fifty Vermonters at a time—most or all of them innocent of any wrongdoing. In June 2013, DMV’s director of enforcement wrote that after six months of FRS operation, twenty-six applicants were referred for fraud investigation, but nearly one third were exonerated.

A 2016 report by Georgetown Law’s Center on Privacy and Technology showed that Vermont’s DMV possesses more than 1.8 million applicant photos, all of which are potentially subject to FRS searches. Responding to that report in October, DMV clarified that it actually possesses 2.6 million images of 709,782 unique individuals.

ACLU policy director Chloé White: “At a time when the Trump administration has already shown extreme disregard for the rule of law and constitutional norms, it’s disturbing to imagine what administration officials might do with a surveillance program so lacking in basic oversight, due process, or other protections. Vermont must take immediate action so as not to be an unwitting accomplice in the Trump administration’s campaign of intolerance and abuse, and to ensure Vermonters’ private information is truly secure.”

The ACLU’s letter to DMV warns there is “significant potential” that the FRS program will chill free speech or be used to retaliate against Vermonters expressing their First Amendment rights, cautioning, “There is currently nothing to prevent FRS from being used to surveil religious, cultural, or political organizations.”

The letter also notes that FRS is a notoriously inaccurate technology. For example, a 2012 study showed the FBI’s facial recognition software has a 14% error rate, its inaccuracy 5-10% greater in searches involving African-Americans, women, and adults 18-30 years old. The ACLU also points to the “significant potential” for abuse, citing a review performed by the Associated Press showing that nationwide hundreds of officers have been disciplined for accessing government database systems for improper reasons, including personal grievances.

The Vermont law banning the use of biometric identifiers was passed in 2004 in response to concerns that new photo ID requirements would accelerate government surveillance and undermine Vermonters’ privacy. Ironically, the statutory language was crafted by then-DMV Commissioner Bonnie Rutledge specifically to address legislators’ concerns that DMV would eventually use facial recognition technology on license applicants’ photos.

The DMV records at issue were obtained by the ACLU of Vermont through a public records request submitted in 2016.